per The Embassy of Bosnia and
Herzegovina to the Netherlands, The Hague

Counsel for the Accused:

Mr. Branislav Tapuskovic

The Government of Serbia and Montenegro

per The Embassy of Serbia and
Montenegro to the Netherlands, The Hague

I. INTRODUCTION

1. This Referral Bench1 of
the International Criminal Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International
Law Committed in the Territory of the Former Yugoslavia
since 1991 (“Tribunal”) is seized of the “Motion by
the Prosecutor under Rule 11 bis
with Annexes I, II, and III” (“Motion”), filed on 31
January 2005, by which the Prosecution requests that
the present case be referred to the authorities of
Bosnia and Herzegovina under Rule 11 bis of
the Rules of Procedure and Evidence (“Rules”).

2. Rule 11 bis, entitled Referral of the Indictment
to Another Court, was adopted on 12 November 1997
and revised on 30 September 2002.2
Revision was necessary in order to give effect to the
broad strategy endorsed by the Security Council for
the completion of all Tribunal trial activities at
first instance by 2008.3 This
completion strategy was subsequently summarised in
Security Council Resolution 1503 as one of “concentrating
on the prosecution of the most senior leaders suspected
of being most responsible for crimes within the ICTY’s
jurisdiction and transferring cases involving those
who may not bear this level of responsibility to competent
national jurisdictions, as appropriate….”4

3. Rule 11 bis in its current form reads:

(A) After an indictment has been
confirmed and prior to the commencement of trial,
irrespective of whether or not the accused is
in the custody of the Tribunal, the President
may appoint a bench of three Permanent Judges
selected from the Trial Chambers (hereinafter
referred to as the “Referral Bench”),
which solely and exclusively shall determine whether
the case should be referred to the authorities
of a State :

(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately
prepared to accept such a case,

so that those authorities should forthwith refer the
case to the appropriate court for trial within that
State.

(B) The Referral Bench may order such referral proprio
motu or at the request
of the Prosecutor, after having given to the Prosecutor
and, where applicable, the accused, the opportunity
to be heard and after being satisfied that the accused
will receive a fair trial and that the death penalty
will not be imposed or carried out.

(C) In determining whether to refer the case in accordance
with paragraph (A), the Referral Bench shall, in
accordance with Security Council resolution 1534
(2004)5,
consider the gravity of the crimes charged and the
level of responsibility of the accused.

(D) Where an order is issued pursuant to this Rule:

(i) the accused, if in the custody of the Tribunal,
shall be handed over to the authorities of the State
concerned;
(ii) the Referral Bench may order that protective
measures for certain witnesses or victims remain
in force;
(iii) the Prosecutor shall provide to the
authorities of the State concerned all of the information
relating to the case which the Prosecutor considers
appropriate and, in particular, the material supporting
the indictment;
(iv) the Prosecutor may send observers to monitor the
proceedings in the national courts on her behalf.

(E) The Referral Bench may issue a warrant for the
arrest of the accused, which shall specify the State
to which he is to be transferred to trial.

(F) At any time after an order has been issued pursuant
to this Rule and before the accused is found guilty
or acquitted by a national court, the Referral Bench
may, at the request of the Prosecutor and upon having
given to the State authorities concerned the opportunity
to be heard, revoke the order and make a formal request
for deferral within the terms of Rule 10.

(G) Where an order issued pursuant to this Rule is
revoked by the Referral Bench, it may make a formal
request to the State concerned to transfer the accused
to the seat of the Tribunal and the State shall
accede to such a request without delay in keeping
with Article 29 of the Statute. The Referral Bench
or a Judge may also issue a warrant for the arrest
of the accused.

(H) A Referral Bench shall have the powers of, and
insofar as applicable shall follow the procedures
laid down for, a Trial Chamber under the Rules.

(I) An appeal by the accused or the Prosecutor shall
lie as of right from a decision of the Referral
Bench whether or not to refer a case. Notice of appeal
shall be filed within fifteen days of the decision
unless the accused was not present or represented
when the decision was pronounced, in which case the
time-limit shall run from the date on which the
accused is notified of the decision.

II. PROCEDURAL HISTORY

4. The initial joint Indictment against Dragomir Milosevic
and co-accused Stanislav Galic was confirmed on 24
April 1998. On 19 March 1999, leave was granted to
sever the joint proceedings and on 26 March 1999 an
amended indictment relating only to Dragomir Milosevic
was filed. Dragomir Milosevic surrendered voluntarily
to the authorities of Serbia and Montenegro on 3 December
2004 and was transferred to the Tribunal that same
day.

5. On 31 January 2005, the Prosecutor filed the Motion
requesting referral of the present case to the authorities
of Bosnia and Herzegovina for trial at the appropriate
domestic court.6 The
following day the President of the Tribunal appointed
the Referral Bench to consider whether the present
case should be referred pursuant to Rule 11 bis of
the Rules.7
On 9 February 2005, the Referral Bench ordered the
parties and invited the Government of Bosnia and Herzegovina
to file submissions on two questions, including the
weight of each question:

a. Is the gravity of the crimes charged in the Indictment
compatible with referral of the case to the authorities
of Bosnia and Herzegovina under Rule 11 bis
of the Rules?

b. Is the level of the responsibility of the Accused
compatible with referral of the case to the authorities
of Bosnia and Herzegovina under Rule 11 bis of
the Rules? In particular, does Rule 11 bis (C)
refer to the role of the Accused in the commission
of the alleged offences, or to the position and rank
of the Accused in the civil or military hierarchy,
or to both?

6. On 21 February 2005 both the Prosecution and the
Defence filed submissions in response to the Referral
Bench’s
order. The Defence submission also responded to the
Motion.8

7. On 18 February 2005, at the instigation of counsel
for the Accused, the Government of Serbia and Montenegro
made a written submission in which it submitted that
the present case should be referred to the authorities
of Serbia and Montenegro.9
On 25 February 2005, the Government of Bosnia and Herzegovina
submitted a response to the above-mentioned questions.10

III. THE INDICTMENT

8. The Indictment alleges that Dragomir Milosevic served
as Chief of Staff of the Sarajevo -Romanija Corps (“SRK”)
from around March 1993 and succeeded Major General
Stanislav Galic as commander of the SRK on or about
10 August 1994.11
Dragomir Milosevic is charged with seven counts of
violations of the laws or customs of war and crimes
against humanity committed by the Sarajevo Romanija
Corps (“SRK
”) under his command against the civilian population
in Sarajevo, Bosnia and Herzegovina, from on or about
10 August 1994 to 21 November 1995.12
He is charged with individual criminal responsibility
under both Article 7(1) and 7(3) of the Statute for
each count.

9. The Indictment alleges that the SRK pursued a military
strategy of shelling and sniping the inhabitants
of Sarajevo, killing and wounding thousands of civilians.13 The
Indictment furthermore alleges that from early April
1995 the SRK began to use large fragmentation bombs,
designed to be dropped from aircraft, which were fitted
to rocket propulsion units without guidance systems
and which caused extensive material damage to property
upon impact.14 The Indictment
contains two “Schedules
” listing respectively 20 and 23 alleged acts of terror,
shelling and sniping for which Dragomir Milosevic
is allegedly responsible. It is noted in the Indictment
that:

All Counts in this indictment allege the totality
of the campaigns of sniping and shelling against
the civilian population but the scale was so great
that the Schedules to the individual groups of counts
in this indictment set forth only a small representative
number of individual incidents for specificity of
pleading.15

10. The Indictment alleges that the SRK “formed a
significant part of the VRS [Bosnian Serb Army] under
the ultimate command of Ratko Mladic, Commander of
the Main Staff and Radovan Karadzic […].”16 According
to the Indictment, “during his period as Corps Commander
of the SRK [Dragomir Milosevic] was in a position
of superior authority to approximately 18,000 military
personnel, formed into 10 brigades.”17 In
his position as SRK commander, Dragomir Milosevic
allegedly negotiated, signed and implemented an anti-sniping
agreement, local cease-fire agreements, and participated
in negotiations relating to heavy weapons and controlling
access of UNPROFOR and other UN personnel to territory
around Sarajevo.18

IV. LEVEL OF RESONSIBILITY OF THE ACCUSED AND
GRAVITY OF THE CRIMES CHARGED

A. Submissions

11. The Prosecution submits that the gravity of the
crimes charged can be assessed from the Indictment
in the present case and from the majority judgement
against Stanislav Galic, Dragomir Milosevic’s former
co-accused.19
Referring to this judgement, the Prosecution argues
that “[t]he alleged crimes involve
a pervasive and continuous campaign of shelling and
sniping conducted at a large scale on an almost daily
basis over many months.”20
The Prosecution considers that “[a]lthough these crimes
are very grave, they were already tried before the
International Tribunal in [Galic] and are now
well documented in that judgement.”21 The
Prosecution therefore concludes that:

If it is appropriate, as the
Prosecution contends it is, to consider the level
of this case in the context of the overall discharge
of the Tribunal’s
mandate, it is clear that its contribution to the
historical record of the events during the conflict
in the former Yugoslavia is reduced in importance.
Had the trial of Stanislav Galic not taken place,
and without the notorious events of the Sarajevo
campaign having been fully addressed, there would
have been no question of this Tribunal being able
to say that it had properly fulfilled its mandate.
As it is, it cannot be said, in the Prosecution’s
view, that it is any longer imperative that the
trial of Dragomir Milosevic is held in The Hague.22

12. As concerns the level of responsibility of the
accused, the Prosecution submits that this “requires
an assessment of two related factors: (a) the structural
level of the accused, in terms of his or her place
in a particular governmental-military -political
hierarchy, and (b) the role of the accused himself
or herself vis-
à-vis the crimes charged.”23 Against
this background, the Prosecution considers that:

[t]he accused in this case, as
the corps commander of the SRK, was in a ‘very
senior position’24 in
the [VRS]. However within the context of the hierarchy
of the VRS and the Republika Srpska authorities,
he was not necessarily one of the most senior leaders.
There are alleged perpetrators who occupied positions
one to two tiers superior to his. These include Ratko
Mladic, the commander of the Main Staff of the VRS,
members of the Main Staff, Radovan Karadzic, the
President of the Republika Srpska and designated
Supreme Commander of its armed forces and other leading
members of the government of the Republika Srpska.
It cannot be said that the accused was the architect
of the overall policy underpinning the alleged crimes
and driving their commission. The role of a soldier,
even of commanders who operate at the strategic level,
is ultimately to execute policy rather than to fashion
it. In addition, a prosecution of Dragomir Milosevic
is likely to show that he inherited a military situation
and continued an already well-established campaign.”25

The Prosecution therefore argues that although
Dragomir Milosevic “was a very senior
commander in the context of the SRK and VRS he was
nevertheless a subordinate of Ratko Mladic and Radovan
Karadzic.”26
Consequently, the Prosecution submits, “it is not imperative
that this case be brought to trial at the International
Tribunal as that of one of “the most senior leaders
” as it falls within the category of “cases
involving intermediary and lower -level accused.”27

13. The Defence submits that the crimes with which
Dragomir Milosevic has been charged
are inherently very grave.28 The
Defence also draws attention to the number of incidents
in the two Schedules attached to the Indictment.29 The
Defence contends that the gravity of the crimes charged
does not support referring the present case.

14. As regards the level of responsibility of the accused,
the Defence argues that the position of Milosevic,
as SRK commander over 18,000 personnel answering “solely
to the Commander of the VRS Main Staff and the Supreme
Commander of that Army”30
“represents a commander of the highest level”.31
The Defence therefore argues that this does not support
referral.

15. As for the gravity of the crimes charged, the
Government of Bosnia and Herzegovina argues that
the gravity is such that the present case is “more
suitable for trial at the ICTY.”32 In
responding to the Chamber’s question whether Rule
11 bis (C) refers
to the role of the accused in the commission of the
alleged crimes or to his position and rank in the relevant
hierarchy, the Government of Bosnia and Herzegovina
submits that if the alleged crimes are of such gravity
that they are more suitable for trial at ICTY then
the role of the accused in the commission of the crimes
should be the determinative factor in deciding whether
the case should be referred.33
In this respect, the Government of Bosnia and Herzegovina
argues that “the relevant
Security Council resolutions and public statements
on the matter of referral show that the intention
was to refer ‘intermediary and lower-level’ accused
to competent national jurisdictions.”34 In
regards the level of responsibility of the accused,
the Government of Bosnia and Herzegovina compares the
situation of Dragomir Milosevic with that of Stanislav
Galic35
and Momir Talic36. It
submits that the Accused, as commander, was “directly
responsible for the events in Sarajevo described in
the Indictment”,37 and
that therefore his position and role do not meet the
criteria of Rule 11 bis. The Government, however,
concludes by stating that should the Referral Bench
decide to refer the case it is prepared and able to
deal with the case.38

16. In its submission, the Government of Serbia and
Montenegro submits that it fulfils the requirements
set forth in Rule 11 bis and that its judiciary
is adequately prepared to accept the present case
should it be referred.39
The Government does not make any further submissions
relating to the applicability of Rule 11 bis to
the present case.

B. Discussion

1. Generally

17. In its recent decision pursuant to Rule 11 bis of
the Rules in the case of
Prosecutor v. Radovan Stankovic, the Referral
Bench stated that:

[in] evaluating the level of
responsibility of the Accused and the gravity
of the crimes charged, the Referral Bench will
consider only those facts alleged in the Indictment – they being the essential case
raised by the Prosecution for trial – in arriving
at a determination whether referral of the case
is appropriate. The Bench will not consider facts
put forth by the parties in their submissions which
go beyond those alleged in the Indictment.40

The Referral Bench will follow the same approach in
considering the present request.

18. The Referral Bench notes that the submissions of
the Prosecution in relation to the issue of referral
appear undetermined as the Prosecution begins its
discussion on this issue in the Motion by stating
that:

there are certain cases, which, although they would
merit prosecution in the international forum, would
also be suitable for prosecution before a competent
national court. The present case is one of those
that might be prosecuted either way.41

2. Gravity of the crimes charged

19. The Indictment depicts the besieging of Sarajevo
as a campaign of the BiH conflict which “killed and
wounded thousands of civilians of both sexes and
all ages” and
caused extensive material destruction.42
The two Schedules attached to the Indictment only set
forth a small selection of the many incidents that
allegedly occurred during the time period of the siege
of Sarajevo relevant to the present case.43
The campaign of shelling and sniping extended throughout
the whole fifteen months of Dragomir Milosevic’s alleged
command of the SRK and was continuous in character.
The Referral Bench notes that the Second Schedule to
the Indictment contains a particularly serious shelling
incident, which killed 43 persons and injured 75 persons.
The Indictment also alleges that:

from early April 1995, the Romanija Corps began to
deploy weapons against Sarajevo which had not previously
been seen in the conflict. Large fragmentation bombs,
designed to be dropped from aircraft, were fitted
with specially adapted rocket propulsion units,
but without any guidance system, and launched over
Sarajevo. The bombs caused extensive damage to property
within a wide radius of their impact. Houses and
apartment buildings were destroyed or seriously
damaged by the blast. The bombs killed or injured
numerous civilians, some survivors suffering permanent
injury, scarring or disability as a result of these
massive explosions. These weapons also created terror
amongst the civilian population.44

This escalation occurred during the time Dragomir Milosevic
allegedly served as Corps commander.

20. The Referral Bench is not able to accept the Prosecution’s
argument that all crimes committed during the siege
have been sufficiently tried before the Tribunal in
the
Galic case. There are several observations to
be made in this context. First, the Trial Chamber’s
judgement in Galic is currently under appeal.45
Secondly, Rule 11 bis does not require the Referral
Bench to consider whether an alleged criminal conduct
has previously been “sufficiently tried” before the
Tribunal or whether it is well documented; at this
stage, the Referral Bench’s assessment
only concerns whether the gravity of the crimes charged
and the level of responsibility of the accused allow
a referral or are more appropriate to demand a trial
at the Tribunal. However, even if it were the case
that Rule 11 bis required the
Referral Bench to consider whether the crimes charged
have been “sufficiently tried
” or well documented, the cases against Stanislav Galic
and Dragomir Milosevic concern
two entirely distinct periods of time. The Referral
Bench cannot accept, therefore, that the factual incidents
that were considered by the Galic Trial Chamber
deal with the conduct alleged against Milosevic. As
none of the conduct, with which the Accused is charged,
has been tried by the Galic Trial Chamber,
the alleged criminal campaign conducted by the SRK
under Dragomir Milosevic has not been “fully
addressed” as submitted by the Prosecution.46

3. Level of responsibility of the Accused

21. During the period of the Indictment, Dragomir Milosevic
is alleged to have served as permanent commander of
the SRK, a Corps with around 18,000 soldiers formed
into ten brigades. On the allegations to be advanced
by the Prosecution, only the very highest level of
military command was above Dragomir Milosevic. It would
be true, on this basis, that he was a subordinate
of Ratko Mladic and Radovan Karadzic,
as the supreme military and civilian leaders, respectively.47
However, the Referral Bench is not able to accept that
this is determinative. Dragomir Milosevic was, according
to the Prosecution case, among the most senior military
officers and exercised authority commensurate with
his rank.

22. As noted above, the Prosecution supports its request
for referral by arguing that
“it cannot be said that the accused was the architect
of the overall policy underpinning the alleged crimes
and driving their commission. The role of a soldier,
even of commanders who operate at the strategic level,
is ultimately to execute policy rather than to fashion
it.”48 The
Referral Bench does not consider, however, that the
phrase “most senior leaders” used by
the Security Council is restricted to individuals who
are “architects” of an “overall
policy” which forms the basis of alleged crimes. Were
it true that only cases against military commanders,
who were at the highest policy-making levels of an
army – in
the case of the VRS the Republika Srpska highest political
and supreme military levels – could not be referred
under Rule 11 bis, this would diminish the
true level of responsibility of many commanders in
the field and those at staff level. This does not
appear to be required by the resolutions of the Security
Council nor is it their apparent effect. The Referral
Bench therefore considers that individuals are also
covered, who, by virtue of their position and function
in the relevant hierarchy, both de jure and de
facto, are alleged to have exercised
such a degree of authority that it is appropriate to
describe them as among the
“most senior”, rather than “intermediate”.

23. In evaluating the position of Dragomir Milosevic,
the Referral Bench notes in particular that he was
the permanent, as opposed to an ad hoc or
acting, commander of the SRK over a prolonged period
exceeding a year and that there was only one echelon
of military commanders, i.e. the highest military
command, above him. It is the case against Dragomir
Milosevic that he negotiated, signed and implemented
anti- sniping and local cease-fire agreements, participated
in negotiations relating to heavy weapons, and controlled
access of UNPROFOR to territory around Sarajevo.
Further, the SRK, within the context of the VRS,
was a very large Corps formation encompassing some
18,000 soldiers. While it may be, as the Prosecution
submits, that “a
prosecution of Dragomir Milosevic is likely to show
that he inherited a military situation and continued
an already well-established campaign”,49
that does not lessen the seriousness of the crimes
allegedly committed during the fifteen months of Milosevic’s
alleged command nor does it lower his level of responsibility.

C. Conclusion

24. The campaign alleged in the Indictment and the
crimes with which Dragomir Milosevic
has been charged stand out when compared with other
cases before the Tribunal, especially in terms of
alleged duration, number of civilians affected, extent
of property damage, and number of military personnel
involved. It is also evident that the Prosecution’s
case imputes significant authority to Dragomir Milosevic.
The Referral Bench therefore concludes that the
gravity of the crimes charged and the level of responsibility
of the accused, particularly when they are considered
in combination, requires that the present case
be tried at the Tribunal. Therefore, there is no
need to consider other factors.

V. DISPOSITION

For the forgoing reasons, THE REFERRAL BENCH

PURSUANT to Rules 11 bis of the Rules;

DENIES the Motion.

Done in English and French, the English text being
the authoritative.

_______________
Judge Alphons Orie
Presiding

Dated this eighth day of July 2005,
At The Hague
The Netherlands

[Seal of the Tribunal]

1. The Referral
Bench was first constituted in September 2004 by
the President for the purpose of deciding upon
the Prosecution's requests for referral of cases
to national authorities for trial under Rule 11 bis of
the Rules of Procedure and Evidence; President's
Order Appointing A Trial Chamber for the Purposes
of Determining whether the Indictment Should Be
Referred to Another Court under Rule 11 bis,
7 September 2004. 2. In its original form, Rule 11 bis provided
for transfer of an accused from the Tribunal to the
authorities of the State in which the accused was arrested.
Transfer required an order from the Trial Chamber suspending
the indictment pending the proceedings before the national
courts. Such an order necessitated findings by the
Trial Chamber that State authorities were prepared
to prosecute the accused in their own courts and that
it was appropriate in the circumstances for the courts
of that State to exercise jurisdiction over the accused. 3. S/PRST/2002/21; S/RES/1329 (2000
). 4. S/RES/1503 (2003). The Security
Council further noted that referral of cases to the
War Crimes Chamber of the Court of Bosnia and Herzegovina
was an essential prerequisite to achieving the objectives
of the completion strategy. See also S/RES/1534
(2004); S/PRST/2004/28. 5. U.N. Doc. S/RES/1534 (2004). 6. Motion, para. 23. 7. Order Appointing a Trial Chamber
for the Purpose of Determining whether an Indictment
Should Be Referred to Another Court under Rule 11 bis,
1 Feb 2005. 8. Prosecution's Further Submissions
pursuant to Chamber's Order of 9 February 2005, 21
Feb 2005 (“Further Submissions ”), and Defence's Response
to the Prosecution's Motion under Rule 11 bis and
the Trial Chamber's Decision of 09.02.2005, 21 Feb
2005 (“Defence Response”). 9. Serbia and Montenegro's Submission
in the Proceedings under Rule 11 bis, 18 Feb
2005 (“S-M Response”). 10. Response to the questions of the
Specially Appointed Chamber of the ICTY, 25 Feb 2005
(“BiH Response”). 11. Indictment, para. 5. 12. Count 1: Infliction of terror
as a violation of the laws or customs of war; Count
2: Sniping as murder, a crime against humanity; Count
3: Sniping as other inhumane acts, a crime against
humanity; Count 4: Sniping as attacks on civilians
(Additional Protocol I to the Geneva Conventions ,
Article 51 and Additional Protocol II to the Geneva
Conventions, Article 13), a violation of the laws or
customs of war; Count 5: Shelling as murder, a crime
against humanity; Count 6: Shelling as other inhumane
acts, a crime against humanity ; and Count 7: Shelling
as attacks on civilians (Additional Protocol I to the
Geneva Conventions, Article 51 and Additional Protocol
II to the Geneva Conventions, Article 13), a violation
of the laws or customs of war. 13. Indictment, para. 4(a). 14. Indictment, para. 4(c). 15. Indictment, para. 15. 16. Indictment, para. 6. 17. Indictment, para. 8. 18. Indictment, para. 9. 19. Motion, para. 19. 20. Motion, para. 20, referring to
Case No. IT-98-29-T, Prosecutor v. Stanislav Galic,
Judgement of 5 Dec 2003 (“Galic judgement”),
para. 764, which reads in the relevant part:
The gravity of the offences committed by General Galic
is established by their scale , pattern and virtually
continuous repetition, almost daily, over many months.
Inhabitants of Sarajevo – men, women, children and
elderly persons – were terrorized and hundreds of civilians
were killed and thousands wounded during daily activities
such as attending funerals, tending vegetable plots,
fetching water, shopping, going to hospital, commuting
within the city, or while at home. The Majority of
the Trial Chamber also takes into consideration the
physical and psychological suffering inflicted on the
victims. Sarajevo was not a city where occasional random
acts of violence against civilians occurred or where
living conditions were simply hard. This was an anguishing
environment in which, at a minimum hundreds of men,
women, children, and elderly people were killed, and
thousands were wounded and more generally terrorized. 21. Motion, para. 22. See also Further
Submissions, para. 4. 22. Further Submissions, para. 4. 23. Further Submissions, para. 2. 24. Original footnote to the Galic judgement,
para. 765. 25. Further Submissions, para. 3. 26. Motion, para. 22. 27.Id. Footnote in the original
: “Italics are from Security Council resolution 1503
(2003) and the statements of its President cited at
paragraphs 11 and 13 hereof.” The Trial Chamber notes
that the Motion is drafted in such a way as to give
the impression that the italics are to be found in
S/RES 1503(2003) and S/PRST/2002/21, which is not
the case. 28. Defence Response, para. 15. 29.Id. 30. Defence Response, para. 19. 31. Defence Response, para. 20. 32. Response by the Government of
Bosnia and Herzegovina to Questions Posed by the Specially
Appointed Chamber in Its Order for Further Submissions
on the Gravity of the Crimes and the Level of Responsibility
of the Accused of 9 February 2005 (“BiH Response”),
dated 25 Feb 2005, p. 2, referring , first, to para.
15 of the Indictment, cited above in para. 9, and also
to the opinion expressed in the Galic judgement,
para. 764, cited above in footnote 20. 33. BiH Response, p. 2-3. 34.Id. 35. Dragomir Milosevic's predecessor
as SRK commander. 36. The former commander of the 1st
Krajina Corps. 37.Id. 38.Id. 39. S-M Response, para. 4. 40. Case No. IT- 96-23/2-PT, Prosecutor
v. Radovan Stankovic, Decision on referral of case
under Rule 11 bis, 17 May 2005, para. 18.41. Motion, para. 17. 42. Indictment, para. 4(a) and (c). 43. Indictment, para. 15, cited above
at para. 8. 44. Indictment, para. 4(c). 45. The Referral Bench notes that
the Defence's of Stanislav Galic seventh ground of
appeal is that there does not exist an international
crime of terror, either in customary or treaty law,
Case No. IT -98-29-T, Prosecutor v. Stanislav Galic,
Notice of Appeal, 4 May 2004, para . 25 et seq; see
also, among others, the eighth, eleventh, and twelfth
grounds of appeal, as well as most of those relating
to alleged errors of fact; id, para 82 et
seq.46. Further Submissions, para. 4.
The Referral Bench notes in this respect that the fact
that the Prosecution has led “overview evidence” in
another case – which does not directly and specifically
concern the present case and the present accused, and
which is not yet adjudicated – regarding factual circumstances
which may be relevant to the time period of the present
case , is irrelevant to the Referral Bench's consideration
of whether the crimes charged in the present case
speak for or against referring the case to another
State . 47. Motion, para. 22. 48. Further Submissions, para. 3. 49. Further Submissions, para. 3.